Citation NR: 9734546
Decision Date: 10/10/97 Archive Date: 10/16/97
DOCKET NO. 89-00 406 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Detroit, Michigan
THE ISSUE
Entitlement to an increased evaluation for plantar fasciitis,
right heel, currently evaluated as 10 percent disabling.
(The issue of entitlement to waiver of the recovery of an
overpayment of disability compensation benefits, in the
calculated amount of $898, to include the issue of whether
the overpayment was properly created will be addressed in a
separate Board decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran had active military service from August 1950 to
June 1953. He has been represented throughout his appeal by
the Disabled American Veterans.
This matter came before the Board of Veterans’ Appeals
(hereinafter Board) on appeal from a rating decision of March
1993, by the Detroit, Michigan Regional Office (RO), which
granted service connection for plantar fasciitis, right heel,
and assigned a noncompensable evaluation effective from
August 22, 1991. The notice of disagreement with this
determination was received in April 1993. The statement of
the case was issued in June 1993. The substantive appeal was
received in July 1993.
By a rating decision in August 1996, the RO increased the
evaluation for plantar fasciitis of the right heel from a
noncompensable rating to a 10 percent rating, effective
August 22, 1991. However, where there is no clearly
expressed intent to limit the appeal to entitlement to a
specified disability rating, then RO and Board are required
to consider entitlement to all available ratings for that
condition. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue
therefore remains in appellate status.
The Board also observes that by rating decision in April
1997, the RO granted entitlement to a total disability rating
based on individual unemployability due to service-connected
disability.
REMAND
The veteran essentially contends that his service-connected
right heel disorder, plantar fasciitis, is more severe than
reflected by the 10 percent rating currently assigned. The
veteran indicates that he experiences pain with any
application of weight on the right heel; as a result, any
amount of walking or standing causes him unbearable pain in
the right heel. The veteran further indicates he requires
the use of a cane to walk anywhere, and he uses crutches
around the house.
The Board notes that, since the time of the recent VA
examination in June 1994, the United States Court of Veterans
Appeals (Court) has held that when a diagnostic code provides
for compensation based solely upon limitation of motion, the
provisions of 38 C.F.R. §§ 4.40 and 4.45 (1996) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain "on use or due to flare-ups."
DeLuca v. Brown, 8 Vet.App. 202 (1995).
Although the Diagnostic Code applicable to the foot
disability in this case is 5284, which is not strictly
speaking a code based on range of motion, the Board finds
that the logic of the Court's decision in DeLuca would appear
to apply equally to Diagnostic Code 5284. 38 C.F.R. § 4.40
requires the Board to consider pain and the inability to
perform normal working movements of the body. 38 C.F.R.
§ 4.40 (1996). In fact, review of the report of the June
1994 VA examination does not clearly reflect the degree to
which, if any, the veteran's pain in the right heel results
in some form of functional loss. As such, symptomatology
could be the basis for assigning increased ratings for his
service-connected foot disorder, additional testing is needed
before the Board can adjudicate the veteran's claim. Here,
the Board is mindful that, in DeLuca, the Court held that a
medical examination must be conducted which complies with the
requirements of 38 C.F.R. §§ 4.40 and 4.45, and the medical
examiner must be asked to express an opinion as to whether
pain could significantly limit functional ability during
flare-up or after repeated use of an affected body part.
In light of the foregoing, the Board finds that this case
should be REMANDED to the RO for the following actions:
1. All up-to-date VA and private
records of treatment received by the
veteran for his service-connected right
heel disorder, which are not already of
record, should be secured and made a
part of the record. The assistance of
the veteran should be sought as
necessary to obtain identifying
information.
2. The veteran should also be afforded
a VA examination by an appropriate
specialist to determine the nature and
extent of plantar fasciitis of the right
heel. All indicated studies and tests
should be conducted. The examiner
should identify all symptoms or
manifestations of plantar fasciitis and
identify the specific functions affected
by the orthopedic impairment associated
with the disorder, and the extent of the
impairment. If possible, the examiner
should offer an opinion as to whether
disability resulting from the plantar
fasciitis of the right heel is moderate,
moderately severe or severe. If any
impairment or function affected is not
related to plantar fasciitis, it should
be identified. The claims folder and a
copy of this remand must be made
available to the examiner in conjunction
with the examination. It is requested
that the examiner provide explicit
responses to the following questions:
(a) Does the service-connected plantar
fasciitis cause weakened movement,
excess fatigability, and incoordination,
and if so, can the examiner comment on
the severity of these manifestations and
on the ability of the veteran to perform
average employment in a civil
occupation? If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
(b) With respect to any subjective
complaints of pain, the examiner is
requested to specifically comment on
whether pain is visibly manifested on
movement of the feet, and the presence
and degree of, or absence of, muscle
atrophy attributable to the disability;
the presence or absence of changes in
condition of the skin indicative of
disuse due to the plantar fasciitis, or
the presence or absence of any other
objective manifestation that would
demonstrate disuse or functional
impairment due to pain attributable to
the disability. In addition, the
examiner should offer opinions as to
whether there is adequate pathology
present to support the level of each of
the veteran's subjective complaints,
including pain and difficulty with
prolonged standing on hard surfaces.
3. The RO should then readjudicate the
claim in light of all the evidence. The
rating decision should reflect
consideration of the guidelines set
forth by the Court in DeLuca. The rating
decision should reflect that
consideration was accorded to whether 38
C.F.R. §§ 4.40 and 4.45 apply, and if
so, whether they provide a basis for any
change in the award of compensation
benefits. If the decision remains
adverse to the veteran, both he and his
representative should be furnished a
supplemental statement of the case which
summarizes the pertinent evidence, all
applicable law and regulations, and
reflects detailed reasons and bases for
the decision. They should then be
afforded the applicable time period in
which to respond.
After the above actions have been accomplished, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either legal or factual, as to
the ultimate determination warranted in this case. The
purpose of this REMAND is to further develop the record and
to accord the veteran due process of law.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ALAN S. PEEVY
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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